Crull, Misti v. Sunderman, William

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 02-4093
MISTI CRULL,
Plaintiff-Appellee,
v.

WILLIAM SUNDERMAN, JOHN W. RAPP,
Justice, LINDSAY PARKHURST, et al.,
Defendants-Appellants.

____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 01 C 1583—John W. Darrah, Judge.
____________
ARGUED OCTOBER 24, 2003—DECIDED SEPTEMBER 17, 2004

Before BAUER, EASTERBROOK and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge. Misti Crull brought this action
pursuant to 42 U.S.C. § 1983 against her former employer,
the State of Illinois Judicial Inquiry Board (“JIB”), individual
JIB members and employees. She alleged constitutional
1
violations as a result of the termination of her employment.

1
Ms. Crull also alleged a deprivation of her liberty interests
resulting from defamatory comments. Subsequently, however,
the defendants moved for summary judgment on the ground that
(continued...)
2 No. 02-4093

The district court dismissed the JIB as a party be-cause it
was immune from suit in federal court. The parties then
filed cross-motions for summary judgment. The remaining
defendants asserted that summary judgment was appropriate
because Ms. Crull had no property interest in her continued
employment, and, therefore, they were entitled to qualified
immunity. The district court denied both motions. The
defendants appealed. We now reverse the judgment of the
district court.

I
BACKGROUND
A. Facts
1. Parties
The 1970 Illinois Constitution created the JIB for the pur-
pose of investigating judicial misconduct and mental or
physical incapacity of the State’s judges. See Ill. Const. art. VI,
§ 15(b). The JIB is composed of board members (“Board”),
a full-time Executive Director, two full-time investigators
and other support staff. The Executive Director is appointed
by the Board to supervise the investigators, to assist with
budget preparation and to be the spokesperson to the
media, among other responsibilities. The JIB hired Ms. Crull
in 1997 as an investigator. Defendants, William Sunderman
and Justice John W. Rapp, were members of the Board in
1997, and defendant Lindsay Parkhurst became a board

1
(...continued)
Ms. Crull had responded in an interrogatory that she no longer
wished to pursue her deprivation of liberty claim. The court
dismissed the liberty interest claim in August 2001. Ms. Crull
does not appeal this dismissal.
No. 02-4093 3

member in 1999. Mr. Sunderman became Chairman of the
JIB in August 1999 and was Chairman at the time the Board
terminated Ms. Crull’s employment. Finally, defendant
Kathy Twine was the JIB Executive Director at the time of
this appeal; she had been named to that position in 1998.
Ms. Twine replaced the former Executive Director, Sue
Tohinaka, after Tohinaka’s death in 1997. Ms. Twine also
fills the role of General Counsel to the JIB. See R.13 ¶ 7.

2. Purpose and Structure of the Judicial Inquiry Board
As stated above, the 1970 Illinois Constitution created the
JIB to conduct investigations and to receive or initiate
complaints concerning judges. See Ill. Const. art. VI, § 15(b)
& (c). The Board may file complaints with the Courts
Commission if there is a reasonable basis to charge a judge
with misconduct or to allege physical or mental disability
which renders the judge unable to perform judicial duties.
See id. at § 15(c).
The JIB’s first meeting was held on October 6, 1971, and
was called to order by Governor Richard Ogilvie. At that
initial meeting, Governor Ogilvie described the agency as an
independent agency and commented that the only authority
the Governor’s office had over the agency was to appoint
seven of its nine members. In 1992, after an inquiry from the
JIB, the Chief Legal Counsel of the Department of Central
Management Services (“CMS”) provided a legal opinion
that stated that the JIB was not subject to the provisions of
2
the Personnel Code. See R.41, Ex.4, Letter of Oct. 19, 1992.
In 1993, the Attorney General concluded that the JIB was an

2
Generally, the Personnel Code sets forth the policies and pro-
cedures for the hiring and firing of employees in state agencies
under the jurisdiction of the Governor.
4 No. 02-4093

independent state agency, part of the judiciary, and,
therefore, was exempt from the state personnel rules. See id.,
Letter of Feb. 24, 1993. The JIB formally adopted the Attor-
ney General’s opinion in 1993. See id., Minutes of March 12,
1993.
Unlike other state employees, generally speaking JIB em-
ployees are not hired from the CMS list of eligible employ-
ees but by the Board; the Board’s hiring decisions were not
restricted by the requirements of CMS. The JIB employees
do not have a written contract for any specific employment
period, and the Board has no formal grievance or discharge
procedures. In some respects, however, JIB employees
receive similar treatment to CMS employees. Both parties
agree that during the relevant time period (1) JIB employees
were evaluated on CMS forms, (2) vacation day forms stated
“Personnel Code Vacation Days Earned” and (3) JIB
adopted the model sexual harassment policy promulgated
by the Governor for agencies within his jurisdiction. See
Appellee’s Br. at 4; Appellants’ Br. at 13. Additionally, Ms.
Crull’s life and health insurance were administered through
CMS. Ms. Crull asserts that, when the JIB had no policy of
their own, it would follow the state employee Personnel
Code. The defendants claim that they looked to the state
policies “just to get a parameter” but have not necessarily
followed the policies as provided by the Personnel Code.
Appellants’ Br. at 12.

3. Hiring of Ms. Crull
When Ms. Crull was hired in 1997 as an investigator for
the JIB, she was not hired through CMS; she applied directly
to the JIB. Ms. Crull interviewed with Executive Director
Tohinaka and, like other JIB employees, did not meet with
the Board prior to her offer of employment. At some point
No. 02-4093 5

during the hiring process, Executive Director Tohinaka told
Ms. Crull that she would be placed on a six-month proba-
tionary period, after which “they have to have a reason to
fire you.” R.44, Ex.3 at 21. Ms. Crull also offered testimony
that she “was assured that the structure of the JIB was
designed to produce credibility and due process for the JIB
staff” as well as for the judges they investigate. R.44, Ex.4,
Crull Aff. ¶ 2. Executive Director Tohinaka sent Ms. Crull a
letter advising her of the date on which she should begin
work, her starting salary and that she would receive “full
State of Illinois Employee Benefit[s].” R.44, Ex. 4, Letter of
Sept. 30, 1997. The Board set Ms. Crull’s salary, which does
not depend on any set pay scale.
In a 1999 letter responding to Ms. Crull’s inquiries about
sick leave, the Labor Relations Manager/Chief Labor
Relations Counsel for the CMS informed Ms. Crull that the
JIB was “not under the jurisdiction of the Governor.” R.41,
Ex.9. The letter informed Ms. Crull to address the issues
with Executive Director Twine and explained that CMS
Labor Relations “generally do[es] not give advice regarding
matters that are not within the Governor’s jurisdiction.” Id.
Further, in June 2000, Board Chairman Sunderman told Ms.
Crull she was an at-will employee.

4. JIB Employees Placed on Probation
In addition to Ms. Crull, at least four other JIB investiga-
tors were placed “on probation” when they started their em-
ployment. “[F]ormer Executive Director Sue Tohinaka
and . . . Executive Director Twine had discretion to put
employees on probation . . . .” R.46 ¶ 14. Investigators Tom
Jennings, John Valencia, Wayne McClory and Dan Marello
were all placed on a six-month probationary period upon
being hired. Furthermore, based on an initial conversation
6 No. 02-4093

with Executive Director Tohinaka, McClory believed he
could be fired only for cause after his six months’ probation.
The Board placed Executive Director Twine on probation as
a new employee in January 1998 and removed her from
probation at their October 9, 1998 Board meeting. See R.44,
Ex.19 at 2.
Several employees also were placed back on probation
when they experienced difficulties in performing their re-
sponsibilities. Executive Director Tohinaka told Jennings
that he was being returned to probationary status. Executive
Director Twine told John Valencia that his probation had
been extended for another six months. See R.44, Ex.9. Both
employees were provided a written explanation of why they
were placed back on probation and an opportunity to
improve their performance. Finally, the defendants ac-
knowledge that “[t]he JIB, through interim Director Sandra
Otaka, also extended McClory’s probation during the
transition between Executive Directors after Tohinaka’s
death so that the new director ‘could fire [him] more easily.’”
Appellant’s Br. at 16 (quoting R.44, Ex.8, McGuire Dep. at
69-70) (alteration in original).

5. Board’s Past Termination of Employees
Prior to Ms. Crull’s termination, there is evidence of only
one other termination, the Board’s termination of Jennings
in March 1997. The Board did not provide Jennings with a
hearing but made its decision based on “Director Tohinaka’s
packet of materials . . . including Tom Jennings’ March 5,
1997 memo in response to his February 24, 1997 Annual
Performance Review.” R.41, Ex.14. In announcing its deci-
sion to terminate Jennings, the Board expressly stated the
decision was “with authorization” to the Executive Director
“to determine a suitable effective date which gives him at
least two weeks notice.” Id. at 1-2.
No. 02-4093 7

Prior to Ms. Crull’s dismissal, the Board became concerned
about her ability to conduct investigations. Specifically, the
Board was concerned about “her judgment, her ability to
write unbiased reports, her reliance on unsubstantiated ru-
mors and her ability to separate rumors from credible evi-
dence.” R.41, Ex.12 at ¶ 5. The outside counsel also ex-
pressed concerns about even using her as a witness before
the Courts Commission. See id. The Board determined to
terminate Ms. Crull because it had lost confidence in her
investigative abilities. See id.; see also Appellant’s Br. at 11
(citing to record). On October 13, 2000, Ms. Crull attended
a meeting with three Board members, defendants Sunderman,
Rapp and Parkhurst, and the Executive Director, Kathy
Twine. At this meeting, those present informed Ms. Crull
that the Board had voted unanimously to terminate her
employment. She was given no prior warning or hearing
but was provided two additional weeks of pay.

B. District Court Proceedings
On March 6, 2001, Ms. Crull filed this action pursuant to
42 U.S.C. § 1983. Specifically, Ms. Crull alleged that she had
a constitutionally protected property interest in her employ-
ment and that her dismissal violated her Fourteenth
Amendment rights to due process of law.
Both parties filed motions for summary judgment. In rul-
ing on the motions, the district court focused on whether
Ms. Crull had put forth facts establishing a property interest
in her continued employment. The court determined that a
property interest could arise from an independent source,
such as state law, or by a clearly implied promise of contin-
ued employment. The second method, the court explained,
included any mutually explicit understandings between the
parties. See R.62 at 7.
8 No. 02-4093

The court refrained from determining whether a state stat-
ute or regulation created such an obligation, noting that the
parties disputed this point and there was no case law
discussing whether the Personnel Code applied to the JIB.
The court determined that the resolution of that issue was
unnecessary because there was a genuine issue of material
fact regarding whether a property interest arose based on a
clearly implied promise of continued employment. Ac-
cordingly, the court denied the motions for summary judg-
ment.
Once it determined there was a triable issue of fact re-
garding Ms. Crull’s property interest in continued employ-
ment, the district court addressed the defendants’ claim of
qualified immunity. The court started with the two-step
inquiry for qualified immunity claims. First, it asked whether
Ms. Crull had stated a violation of her constitutional rights.
The court determined that Ms. Crull did raise a triable issue
as to whether she could only be terminated for cause.
Therefore, the court held, Ms. Crull had alleged a violation
of her constitutional rights, namely a deprivation of a
property interest without due process.
Second, the court addressed whether these rights were
clearly established at the time of the alleged violation. Al-
though there was no precedent on whether a JIB employee
had a property interest in her continued employment, the
case law was clear, the court determined, that a property
interest could arise from a clearly implied promise of con-
tinued employment. The court concluded that “it has long
been established that a property right in employment could
arise from the practices and promises of the state em-
ployer.” Id. at 10. Because Ms. Crull had come forward with
a triable issue of fact regarding whether this type of prop-
erty interest existed, summary judgment could not be
granted for the defendant.
No. 02-4093 9

II
DISCUSSION
A. Standards for Qualified Immunity
The defendants appeal the district court’s denial of their
motion for summary judgment on qualified immunity. This
decision is reviewed de novo. See McGrath v. Gillis, 44 F.3d
567, 569 (7th Cir. 1995). At this stage, we must view the facts
in the light most favorable to Ms. Crull, the nonmoving
party. Summary judgment is only appropriate when “the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). Summary judgment should be
granted when the facts, viewed in the light most favorable
to the nonmoving party, fail to establish an essential
element of the nonmoving party’s claim on which she will
bear the burden of proof at trial. See Beauchamp v. City of
Noblesville, Ind., 320 F.3d 733, 742 (7th Cir. 2003).
To establish qualified immunity, a court must first ask
whether, “[t]aken in the light most favorable to the party
asserting the injury, do the facts alleged show the [defen-
dants’] conduct violated a constitutional right?” Saucier v.
Katz, 533 U.S. 194, 201 (2001). Second, the court must deter-
mine if the right was clearly established at the time of the
violation. See id. In addressing these questions, we also must
inquire as to whether the facts, viewed in the light most
favorable to Ms. Crull, demonstrate a violation of her
3
constitutional rights.

3
Ms. Crull suggests that this court lacks jurisdiction to hear this
appeal because it was an interlocutory appeal based on disputed
(continued...)
10 No. 02-4093

B. Violation of a Constitutional Right
Ms. Crull alleges she was deprived of her property inter-
est in violation of the Due Process Clause of the Fourteenth
Amendment when she was fired without notice or a hearing.
The burden is on her to demonstrate that she possessed a
property interest in her employment with the JIB that is pro-
tected by the Constitution. See Johnson v. City of Fort Wayne,
91 F.3d 922, 943 (7th Cir. 1996). “A protected property
interest in employment can arise from a state statute,
regulation, municipal ordinance, or an express or implied
contract—those ‘rules or understandings that secure certain
benefits and that support claims of entitlement to those
benefits.’ ” Id. (quoting Border v. City of Crystal Lake, 75 F.3d
270, 273 (7th Cir. 1996)); see Heck v. City of Freeport, 985 F.2d
305, 310 (7th Cir. 1993) (“[P]roperty interests in the employ-
ment context arise in two ways: by an independent source
such as state law securing certain benefits, or by a clearly
implied promise of continued employment.” (internal quo-
tations omitted)). Because Ms. Crull was employed in
Illinois, we must examine Illinois law to determine if she
had a property interest in her employment with the JIB. See
Johnson, 91 F.3d at 943.

3
(...continued)
factual issues. We note, however, that “a district court’s denial of
a claim of qualified immunity, to the extent that it turns on an
issue of law, is an appealable ‘final decision’ within the meaning
of 28 U.S.C. § 1291 notwithstanding the absence of a final judg-
ment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Therefore, we
previously have stated that “we have jurisdiction over an appeal
when the issue is simply whether, construing the disputed facts
in the light most favorable to the plaintiff, the defendant violated
any of the plaintiff’s clearly established constitutional rights.”
Knox v. Smith, 342 F.3d 651, 656 (7th Cir. 2003).
No. 02-4093 11
4
1. State Statute or Regulation
“The presumption in Illinois is that employment is at-
will . . . .” Border, 75 F.3d at 274. The relevant statute that
Ms. Crull offers to rebut this presumption is the Personnel
Code. See 20 Ill. Comp. Stat. 415/1-25. The Personnel Code
establishes “a system of personnel administration under the
Governor, based on merit principles and scientific meth-
ods.” 20 Ill. Comp. Stat. 415/2. Its rules generally provide
employees subject to its procedures a hearing prior to
termination for cause. See 20 Ill. Comp. Stat. 415/8b.16
(“[The rules prepared by CMS shall provide] [f]or hearing
before discharge or demotion with the prior approval of the
Director of Central Management Services only for cause
after appointment is completed, after the person to be dis-
charged or demoted has been presented in writing with the
reasons requesting such discharge or demotion.”). Neither
party disputes that the Personnel Code provides a property
interest in continued employment for the employees who
5
fall under its coverage.
As we noted, Ms. Crull must be able to demonstrate that,
under Illinois law, a JIB employee has a property interest in
her employment. She must establish that the Personnel Code
actually applies to her position. Therefore, we now consider
whether the Personnel Code applies to JIB employees.

4
The district court did not address whether Ms. Crull had a
property interest created by statute or regulation.
5
See Powell v. Jones, 305 N.E.2d 166, 169 (Ill. 1973); Prato v. Vallas,
771 N.E.2d 1053, 1064 (Ill. App. Ct. 2002) (“A public employee
who may be terminated only for cause has a property interest in
his employment within the meaning of the due process guaran-
tees of the United States and Illinois Constitutions.”).
12 No. 02-4093

a. applicable constitutional provisions
Article VI of the Constitution of the State of Illinois ad-
dresses the Judiciary. Within that article, Section 15 specifi-
cally speaks to the retirement and discipline of judges. Sub-
section “b.” creates the JIB. See Ill. Const. art. VI, § 15(b).
That section then specifies that the Supreme Court shall
select two members and the Governor seven; the members
shall serve for four-year terms, not to exceed eight years of
service. Subsection “c.” then addresses the authority and
duties of the Board and subsection “d.” provides that “[t]he
Board shall adopt rules governing its procedures. It shall
have subpoena power and authority to appoint and direct
its staff.” Ill. Const. art. VI, § 15(d).

b. scope of the Personnel Code
The purpose of the Personnel Code is “to establish for the
government of the State of Illinois a system of personnel
administration under the Governor, based on merit principles
and scientific methods.” 20 Ill. Comp. Stat. 415/2 (emphasis
added). The “Jurisdictions, exemptions” section defines the
scope of the Personnel Code by stating that “[a]ll offices and
positions of employment in the service of the State of Illinois
shall be subject to the provisions of this Act unless ex-
empted in this or any other Act.” 20 Ill. Comp. Stat. 415/4.
Among the specifically exempted positions are:
(1) All officers elected by the people.
(2) All positions under the Lieutenant Governor, Secre-
tary of State, State Treasurer, State Comptroller, State
Board of Education, Clerk of the Supreme Court, and
Attorney General.
(3) Judges, and officers and employees of the courts,
and notaries public.
No. 02-4093 13

(4) All officers and employees of the Illinois General
Assembly, all employees of legislative commissions, all
officers and employees of the Illinois Legislative Reference
Bureau, the Legislative Research Unit, and the Legislative
Printing Unit.
20 Ill. Comp. Stat. 415/4c.

c. parties’ contentions
The defendants focus on the word “under” in Section 2 of
the statute. They contend that Section 2 limits the scope of
the Personnel Code to only those civil service employees
“under the Governor.” Correlatively, they assert that the
Personnel Code does not apply to entities outside the
Governor’s authority and control. Because the JIB was cre-
ated under Article VI of the state constitution, the section
that concerns the Judiciary, the defendants assert that the JIB
is not “under the Governor” for purposes of the Personnel
Code. The defendants argue that any other reasoning would
bring the Personnel Code statute in conflict with the con-
stitutional grant of authority permitting the Board to ap-
point and direct its staff. The application of the Personnel
Code to the independent JIB would permit, according to the
defendants, the legislative branch to interfere with the JIB’s
constitutional authority, contrary to the Illinois Constitu-
tion. See Ill. Const. art. II, § 1 (“The legislative, executive and
judicial branches are separate. No branch shall exercise
powers properly belonging to another.”).
Ms. Crull, in contrast, asserts that 20 Ill. Comp. Stat. 415/4
applies the Personnel Code to all positions in the service of
the State of Illinois except for those positions exempted from
the statute. She submits that JIB employees are not exempt.
Specifically, she notes that many of the exempt organiza-
tions in Section 4 are not properly considered “under” the
Governor’s jurisdiction.
14 No. 02-4093

d. application
When the Personnel Code is read as a whole, it does not
unambiguously state whether it applies to the JIB. Section 4,
describing the “jurisdictions” and “exemptions” of the
chapter, states that the code applies to all positions “in the
service of the State of Illinois” unless exempted, 20 Ill.
Comp. Stat. 415/4; however, Section 2, discussing the pur-
pose of the chapter, states that the Personnel Code is to
establish “a system of personnel administration under the
Governor.” 20 Ill. Comp. Stat. 415/2 (emphasis added). The
JIB clearly is one of the “offices and positions of employ-
ment in the service of the State of Illinois,” but it is difficult
to see how it is an agency “under the Governor.”
We think a textual analysis of these provisions provides
a fairly secure basis for determining, as various organs of
Illinois government discussed earlier in the opinion have,
that the Board is not subject to the Personnel Code. Never-
theless, for the sake of argument, we shall assume that these
texts leave some doubt and look beyond the text to verify
the intent of those provisions. At the outset, we note that
Illinois courts grant “considerable deference to an agency’s
interpretation of a statute it administers”; however, “an
agency’s interpretation is not binding as to questions of law
and will be rejected if erroneous.” See Denton v. Civil Serv.
Comm’n, 679 N.E.2d 1234, 1236 (Ill. 1997). The CMS is the
agency in charge of administering the Personnel Code, and,
therefore, we give their interpretation appropriate defer-
ence.
The CMS, in a letter responding to the Board’s questions
whether the Personnel Code applied, stated that JIB “em-
ployees have been considered exempt from the Personnel
Code since the 1970 Constitution became effective.” R.41,
Ex.4, Letter of Oct. 19, 1992, at 1. The Chief Legal Counsel
for CMS further opined that “[w]hen the Constitution be-
No. 02-4093 15

came effective, its grant of authority to the Board to appoint its
employees [Section 15(d)] was contrary to and inconsistent
with the provisions of the Personnel Code.” Id. The CMS
concluded that this constitutional grant of authority “was an
expression of intent that employees of the Board are exempt
from the Personnel Code.” Id. The CMS also took note of the
impact that the Personnel Code would have on other
branches of government because it requires that most em-
ployees only be fired for cause. In light of this restriction, the
CMS reasoned, the Personnel Code would impose “more than
a peripheral, indirect, or collateral change in personnel
administration.” Id. at 2. The CMS concluded that employ-
ees of the JIB “are exempt from the provisions of the
6
Personnel Code.” Id. at 3.
We see no reason to dispute this interpretation of the
statute. The CMS’s interpretation is well grounded and
firmly supported by traditional principles of statutory con-
struction. When the creation of the JIB is viewed in context
with the Personnel Code as a whole, it is clear that those
procedures were not intended to be applied against the JIB.

6
This interpretation is consistent with the Attorney General’s
comments in response to the JIB’s inquiry whether the Personnel
Code applied to its employees. See R.41, Ex.4. It also is consonant
with the more recent letter from the Chief Labor Relations Counsel
for CMS, Nancy Pittman, responding to Ms. Crull. Ms. Pittman
informed Ms. Crull in August of 1999 that she could not answer
Ms. Crull’s questions because the JIB was not “under the ju-
risdiction of the Governor.” R.41, Ex.9. This interpretation also
conforms with JIB’s statements to its employees. For example, in
adopting a vacation policy based on the Personnel Code, the
Board expressly noted that “the Board is not governed by the
Personnel Code” but adopted the policy because it was in the best
interest of the public to do so. R.41, Ex.6.
16 No. 02-4093

Structural principles of constitutional and statutory inter-
pretation support this conclusion. The JIB was created in the
1970 Illinois Constitution; the Personnel Code has been in
existence since 1955. Obviously, the Personnel Code did not
specifically address the JIB at the time of its enactment; the
JIB did not exist. The Personnel Code, however, exempts all
elected officers, “all Judges, and officers, and employees of
the courts, and notaries public,” and all employees of the
Illinois General Assembly, including employees of legi-
slative commissions. 20 Ill. Comp. Stat. 415/4c. In sum,
Section 4c exempts nearly all legislative and judicial posi-
tions, leaving only those positions in the executive branch
subject to the Personnel Code.
Historical factors support this structural view. Prior to the
1970 creation of the JIB, its functions were exercised by the
Illinois Supreme Court. See Owen v. Mann, 475 N.E.2d 886,
890 (Ill. 1985). The JIB’s predecessor, the Illinois Courts
Commission, was therefore exempt from the Personnel Code
because it was under the auspices of the Supreme Court.
Although JIB employees may not be considered judges or
employees of the courts—those employees specifically listed
in Section 4c(3)—the JIB was created as part of Article VI
which addresses the Judiciary, and it seems equally likely
that the Personnel Code was not intended to apply to them.
The Board also was given explicit power to “appoint and
direct its staff.” Id. § 15(d). The placement of the JIB in the
Judiciary Article with this express grant of authority pro-
vides a very substantial reason to question the Personnel
Code’s application to the JIB. See Ill. Const. art. II, § 1 (“The
legislative, executive and judicial branches are separate. No
branch shall exercise powers properly belonging to another.”).
In accord with this express power to appoint and direct its
staff and establish rules governing its procedures, the only
significant role another branch has over the personnel oper-
ations of the Board is that the Governor is permitted to
No. 02-4093 17

appoint seven members while the Illinois Supreme Court
selects two. Applying the Personnel Code’s restrictions to
such an entity would impinge on the express grant of
power. Because the JIB did not exist when the Personnel
Code exemptions were enacted, because its predecessor was
exempt and because Section 4c generally exempts positions
in the legislative and judicial branches, it is reasonable to
conclude that Section 2 of the Personnel Code applies only
to those positions “under” the Governor, which excludes the
JIB from its reach.
Moreover, the CMS interpretation is consistent with the
practices and interpretations over the entire 30-year life of
the agency. It is consistent with Governor Ogilvie’s com-
ments at the JIB’s initial meeting in 1971, that the JIB was an
independent agency beyond his authority. See R.41, Ex.2 at
2. It is also supported by the JIB’s practice of not hiring
employees through the CMS system and setting their own
procedures regarding personnel.
Accordingly, we conclude that the Personnel Code does
not apply to JIB employees. Therefore, Ms. Crull does not
have a property interest arising from the Personnel Code.
This conclusion, however, does not end our inquiry, and we
must now turn to consider other potential sources of
property interests.

2. Clearly Implied Promise of Continued Employment
Although Ms. Crull did not have a property right arising
from an explicit contractual agreement or the Personnel
Code, property rights are not created solely by these sources.
“ ‘[P]roperty’ interests subject to procedural due process
protection are not limited by a few rigid, technical forms.
Rather, ‘property’ denotes a broad range of interests that are
secured by ‘existing rules or understandings.’ ” Perry v.
Sindermann, 408 U.S. 593, 601 (1972) (internal citations omit-
18 No. 02-4093

ted). Ms. Crull may establish a property interest in her
employment if she can demonstrate the existence of an
unwritten “common law of employment” providing a right
to be terminated only for cause. Id. “A common law of
employment is established through rules or ‘mutually
explicit understandings’ and not solely through past practices
of the employer.” Hermes v. Hein, 742 F.2d 350, 355 (7th Cir.
1984) (internal citations omitted); see Perry, 408 U.S. at 601;
Miller v. Crystal Lake Park Dist., 47 F.3d 865, 867 (7th Cir.
1995) (noting that a “ ‘mutually binding obligation’ is just
fancy language for ‘contract’ ”); Powell, 305 N.E.2d at 169
(noting that “every public employee does not have a right
to continued employment,” but “a public employee can
have such a right dependent upon the surrounding circum-
stances including existing rules and understandings”).
When basing a property interest on mutually explicit
understandings, however, extreme care must be taken in
evaluating the nature, quality and clarity of the purported
understandings. Not anyone can bind the government. It is
“firmly established that the ‘mutually explicit understand-
ings’ that constitute property interests under the holding of
Perry cannot be based on the representations of government
officials who are not authorized to make such representa-
tions.” Wolf v. City of Fitchburg, 870 F.2d 1327, 1334 (7th Cir.
7
1989). We must be mindful of this restriction when consid-
ering the facts that may demonstrate a mutually explicit
understanding.

7
See Fittshur v. Vill. of Menomonee Falls, 31 F.3d 1401, 1408 (7th
Cir. 1994); Santella v. City of Chicago, 936 F.2d 328, 331-32 (7th Cir.
1991); Wolf v. Larson, 897 F.2d 1409, 1413 (7th Cir. 1990); Smith v.
Bd. of Educ. of the City of Chicago, 853 F.2d 517, 521 (7th Cir. 1988);
Common v. Williams, 859 F.2d 467, 472 (7th Cir. 1988); Hadley v.
County of Du Page, 715 F.2d 1238, 1242-43 (7th Cir. 1983).
No. 02-4093 19

a. executive director
Ms. Crull primarily relies upon a statement by Executive
Director Tohinaka at the time Ms. Crull was hired to es-
tablish her property interest. Ms. Crull submitted affidavit
testimony that Tohinaka told her that there was a six-month
probationary period after which “they have to have a reason
to fire you.” R.44, Ex.3 at 21. According to Ms. Crull, this led
her to believe that she would be subject to progressive
discipline and that she would be given a hearing prior to
termination. Ms. Crull, however, does not offer any indica-
tion that the Executive Director had the actual authority to
establish her employment conditions.
Ms. Crull admits that she “did not present any facts or ex-
hibits regarding the Executive director’s authority, and the
district court did not consider the issue.” Appellee’s Supp.
Br. at 1; see Appellee’s Br. at 14. Ms. Crull explains that she
did not proffer such evidence because the defendants
“never made assertions regarding the authority of the JIB
Executive Director in their statement of material Facts (Doc.
41).” Appellee’s Supp. Br. at 1. Ms. Crull acknowledges,
however, that the defendant offered deposition testimony
and an affidavit regarding the power of the Executive Direc-
tor. See Appellants’ Br. at 14 n.4. The Executive Director has
no authority, according to the defendants, to establish
agency policy or make employee decisions without the
approval of the Board. Specifically, Executive Director Twine
averred that in her position as Executive Director she did
not have the power to fire anyone. See R.44, Ex.6 at 13. The
defendants submitted evidence that the Board, and not the
Executive Director, determines whether to promote an
employee, see R.41, Ex.14, to give an employee a raise, see
R.44, Ex.6 at 14-16, and to adopt other personnel policies for
the JIB, see R.44, Ex.19 at 2. When the Board hires employees,
the Board sets the salary and does not offer employment
20 No. 02-4093

contracts for any time frame. See R.41, Ex.19 ¶ 4. The Board
considers investigators at-will employees, and it has no
policy that employees can be fired only for cause. See id.
Ms. Crull had to support her assertion of mutually explicit
understanding of continued employment by offering
statements from someone who could bind the Board. See
Wolf, 870 F.2d at 1334; see also n.9 infra. Ms. Crull had the
burden, not only to demonstrate a property interest, see, e.g.,
Lawshe v. Simpson, 16 F.3d 1475, 1483 (7th Cir. 1994), but to
demonstrate that the person making statements had the
authority to create a property interest, see Schoenberger v.
Chicago Transit Auth., 405 N.E.2d 1076, 1136 (Ill. App. Ct.
1982) (“The authority to bind a principal will not be pre-
sumed, but rather, the person alleging the authority must
prove its source . . . .”); see also Yugoslav-American Cultural
Ctr. v. Parkway Bank & Trust Co., 682 N.E.2d. 401, 406 (Ill.
App. Ct. 1997) (noting that the burden on the person seek-
ing to bind the principal “is difficult to meet because, where
the existence of an agency is an issue, the mere statements
of the alleged agent, made outside the presence of the
principal and not subsequently approved by him, do not
establish the existence of the principal-agent relationship”).
Ms. Crull did not produce the facts to support her claim.
Ms. Crull also submits that there are facts in the record
that suggest the Executive Director had the apparent author-
ity to change her employment terms. It is well established
that, generally speaking, “[a] principal is bound equally by
the authority that he actually gives his agent and by that he
appears to give.” Amcore Bank v. Hahnaman-Albrecht, Inc.,
759 N.E.2d 174, 183 (Ill. App. Ct. 2001). However, this gen-
eral rule must be applied with great circumspection when
a state entity is the principal.
The JIB is a creature of the Illinois Constitution. It is
composed of members that are appointed for limited terms.
The Constitution specifically provides the Board with the
No. 02-4093 21

authority to appoint and direct its staff. This is an unlikely
situation in which to apply the common law principles of
apparent authority, which would effectively permit the
statements of one Executive Director, an employee of the
Board, to bind all subsequent Boards and thus to restrict the
Board’s specific constitutional grant of authority. See Heck v.
City of Freeport, 985 F.2d 305, 311 (7th Cir. 1993) (noting that
property interests arising from mutually explicit under-
standings only could occur “if consistent with official law”).
Indeed, Illinois courts have held that “it is contrary to the
effective administration of a political subdivision to allow
elected officials to tie the hands of their successors with
respect to decisions regarding the welfare or the subdivi-
sion.” Cannizzo v. Berwyn Township, 741 N.E.2d 1067, 1071
(Ill. App. Ct. 2000) (citing the rule established in Millikin v.
County of Edgar, 32 N.E. 493 (1892)).
Applying the rule to municipalities, the court in Cannizzo
held that an elected board did not have authority to employ
persons in positions that were important to the effective
administration of the board beyond its term. See id.; see also
Grassini v. DuPage Township, 665 N.E.2d 860 (Ill. App. Ct.
1996). Because the board in Cannizzo used staggered
appointments, the length of time used to measure or limit
the board’s power was the term of the elected official
appointing the board. The court determined that a three-
year employment contract extended beyond the board’s
authority and was void ab initio. See Cannizzo, 741 N.E.2d at
1074.
Furthermore, in circumstances outside the context of hir-
ing employees, the use of apparent authority by government
employees to bind the State has been circumscribed consid-
erably in Illinois. A party who deals with a governmental
body assumes the risk of ascertaining whether the agent is
22 No. 02-4093

acting within the bounds of the agent’s authority or whether
8
the agent is outside his authority.
Even if apparent authority applied in the present situa-
tion, Ms. Cole has not come forward with facts to establish
the apparent authority of the JIB Executive Director to guar-
antee that employees would be terminated only “for cause,”

8
See Rubidoux v. Northeastern Illinois Univ., 51 Ill. Ct. Cl. 275, 1998
WL 1758261, at *9 (1998) (noting that the doctrine of apparent
authority “has limited, if any, application to the State, where
contractors are required to ascertain at their peril the true
authority of purported agents of the State”); see also County of
Cook v. Patka, 405 N.E.2d 1376, 1380-81 (Ill. App. Ct. 1980) (“Any-
one dealing with a governmental body takes the risk of accurately
ascertaining that he who purports to act for that body stays within
the bounds of his authority and this is so even though the agent
himself may have been unaware of the limitations on his author-
ity.”); Ernat v. State of Illinois, 36 Ill. Ct. Cl. 82, 90 (1984) (stating
that “[t]he State cannot be bound by agents with apparent
authority rather than actual authority in most situations because
such a policy could be disastrous to the State’s budget”); cf.
Gersch v. Dep’t of Prof ’l Regulation, 720 N.E.2d 672, 681 (Ill. App.
Ct. 1999) (“A public entity cannot be estopped by an act of its
agent which is beyond the authority expressly conferred upon
that official.”); Hamwi v. Zollar, 702 N.E.2d 593, 598 (Ill. App. Ct.
1998) (“A municipality cannot be estopped by an act of its agent
beyond the authority expressly conferred upon that official.”);
Akmakjian v. Dep’t of Prof’l Regulation, 679 N.E.2d 783, 787 (Ill.
App. Ct. 1997) (refusing to permit representations beyond the
agent’s actual authority to estop a governmental body). But cf.
Genie Constr. Co. v. Illinois, 51 Ill. Ct. Cl. 153, 1999 WL 33246466,
at *9 (1999) (“Where the State vests a person with apparent
authority to order services, the Claimant reasonably relied upon
his apparent authority to bind the State, and the Claimant
performed the services, the State cannot deny that the person had
actual authority to bind the State.” (internal citations omitted)).
No. 02-4093 23

would be subject to progressive discipline and would be ter-
minated only after a hearing. “[A]pparent authority arises
when a principal, through words or conduct, creates a rea-
sonable impression that the agent has the authority to perform
a certain act.” Amcore Bank, 759 N.E.2d at 183-84 (internal
citations omitted). Apparent authority must be traced to
some word or act of the principal, here the Board, that cre-
ates a reasonable impression that the agent, the Executive
Director, has the authority to act with respect to the matter
at issue, here the nature of the employment relationship.
In support of her claim of apparent authority, Ms. Crull
asserts that the Executive Director has been permitted to
“establish[ ] employment policies without the approval of
the Board, including the ‘policy for daily operations’ and
rules on personal and sick days. (Doc. 41, Ex. 7, Ex. 9A).”
Appellee’s Br. at 15. However, the authority cited for this
proposition does not support Ms. Crull’s assertion. Exhibit
7 is a cover memo from the Executive Director informing JIB
employees of changes in the “Policy for Daily Operations.”
Nothing in the cover memo or in the policy itself suggests
that the policy was adopted without Board approval; to the
contrary, in fact, with respect to “Vacation and Personal
Days,” the policy states that “[a]lthough JIB is not covered
by the State Personnel Code, the Board has adopted the
accumulated vacation leave policy applicable to all State
employees.” R.41, Ex.7 at 2 (emphasis added). Similarly,
Exhibit 9A simply is an explanation of how the sick-time
policy will be administered, i.e., hourly increments in which
employees may use sick time; it does not suggest that the
Executive Director has the authority to make unilateral poli-
cies with respect to terms and conditions of employment,
for instance, the actual number of sick days to which an
employee is entitled. Furthermore, with respect to the only
other termination of employment that took place prior to
Ms. Crull’s, it was the Board that made the termination
24 No. 02-4093

decision (notably without a hearing). Finally, in announcing
its decision to terminate Jennings, the Board expressly
stated in its decision that it was authorizing the Executive
Director to “determine a suitable effective date which gives
him at least two weeks notice.” R.41, Ex.14. Far from giving
the impression that the Executive Director has the authority
to set terms of employment, these actions lead to the
9
conclusion that the authority rests strictly with the Board.
Having determined that the Executive Director did not
have apparent authority to offer employment with specific
requirements for discharge, we turn to the question of
whether the Board itself created any property interest in the
employees’ continued employment.

b. Board
The practices of the Board also do not support a mutually
explicit understanding to continued employment. Ms. Crull
has not offered any evidence that the Board shared her
understanding of her employment terms. The evidence
submitted only leads to an inference that Ms. Crull had a
misunderstanding as to her entitlements. See Wolf, 870 F.2d
at 1335. There is nothing to infer that the Board reached an
agreement with her or intended her to have any form of

9
Although not addressed by the parties, we note that, in support
of her apparent authority argument, Ms. Crull points primarily
to actions of the Executive Director and the Board taken after she
accepted her employment with the Board. It is difficult, therefore,
for Ms. Crull to argue that she relied on the impressions resulting
from these later actions when she accepted her earlier-in-time
offer of employment (and, presumably, relied on the Executive
Director’s statements regarding the nature of her employment
with the Board).
No. 02-4093 25

tenure.
Ms. Crull asserts that no JIB investigator had been ter-
minated without cause and without an opportunity to im-
prove their performance. She also asserts that the JIB had a
practice of placing employees on probation prior to ter-
minating them. Ms. Crull points to evidence in the record
demonstrating that the Board voted to remove Executive
Director Twine from probation over six months after she
became the executive director. See R.41, Defendant’s State-
ment of Uncontested Facts ¶ 3 (noting that Twine became
the Executive Director in January 1998); R.44, Ex.19 at 2
(Board minutes of October 9, 1998, removing Ms. Twine
from probation). Ms. Crull also points to defendants’ statement
that “[t]he JIB, through interim Director Sandra Otaka, also
extended McClory’s probation during the transition be-
tween Executive Directors after Tohinaka’s death so that the
new director ‘could fire [him] more easily.’ ” Appellants’ Br. at
16. Finally, she points out that the Board has adopted some
10
Personnel Code policies.
Past practices of an employer are not sufficient, standing
alone, to establish a mutual understanding. See Lawshe, 16

10
The fact that the JIB adopted some provisions of the Personnel
Code does not create a genuine issue of material fact regarding
the nature of Ms. Crull’s employment. When the Board adopted
one provision of the Personnel Code, it explicitly stated it was not
required to adopt it but did so because it was in the best interest
of the public. If Ms. Crull assumed that the Board would adopt
all of the Personnel Code based on its adoption of a few policies,
this is evidence of a mistake rather than any mutual understand-
ing. “A misunderstanding of one’s entitlements, even if reason-
able, does not enlarge those entitlements.” Wolf v. City of
Fitchburg, 870 F.2d 1327, 1335 (7th Cir. 1989) (internal quotation
marks and citations omitted).
26 No. 02-4093

F.3d at 1480; see also Hermes, 742 F.2d at 355 (“[A] common
law of employment is established through rules or mutually
explicit understandings and not solely through the past
practices of an employer.” (internal citations omitted)). The
past terminations, however, do not indicate a “common
practice.” The record reveals evidence of only one other
employee fired besides Ms. Crull. In effecting this termina-
tion, it is not even evident that the Board permitted him an
11
opportunity to respond to its decision.
The evidence in the record regarding the Board’s under-
standing is that it considered JIB employees to be employed at
will. Board member Parkhurst stated in a deposition that
she considered Ms. Crull an at-will employee. See R.41,
Ex.23, Parkhurst Dep. Significantly, in June of 2000, Board
Chairman Sunderman told Ms. Crull she was an at-will
employee. R.41, Ex.15 ¶ 5. Six months prior to terminating
Ms. Crull, the Board asked outside counsel for an opinion
explaining the status of its employees, specifically whether
they were at-will employees. The outside counsel informed

11
The Board fired Tom Jennings after considering the reviews
provided by the Executive Director and Jennings’ written re-
sponse to the Executive Director’s criticism. At their March 14,
1997 meeting, the Board noted:
With respect to annual personnel reviews the Board re-
viewed Director Tohinaka’s packet of materials consisting of
reviews and attachments on all staff, including Tom
Jennings’ March 5, 1997 memo in response to his February
24, 1997 Annual Performance Review. As a result of their
discussion, the Board voted to terminate Tom’s employment
with authorization granted to Director Tohinaka to deter-
mine a suitable effective date which gives him at least two
weeks notice.
R.41, Ex.14 at 2.
No. 02-4093 27

the Board that the employees were at-will employees. See
R.44, Ex.15 at 53-56. There is no indication that the Board
ever came to a mutually explicit understanding with Ms.
Crull to provide her with a right to only be fired for cause.
Because it is the plaintiff’s burden to show mutually explicit
understanding or common law of workplace that establishes
a property interest, and because, viewing the facts in the
light most favorable to Ms. Crull, she has not met this
burden, we must conclude Ms. Crull did not have a prop-
12
erty interest in her continued employment.

Conclusion
We find that Ms. Crull failed to demonstrate a property
interest in her continued employment pursuant to any
statute, regulation or contractual agreement, either express
or from mutually explicit understandings. Accordingly, the
defendants were entitled to summary judgment. The judg-
ment of the district court is reversed.
REVERSED

12
It is not necessary, therefore, for us to consider the second
prong of the qualified immunity analysis—whether the right that
was denied was clearly established at the time the defendants
acted.
28 No. 02-4093

A true Copy:
Teste:

_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA-02-C-0072—9-17-04